a written and duly signed proposal is accepted by word of mouth the contract itself is completed by such acceptance and the writing is a sufficient memorandum of it (a). It has also been decided that an acknowledgment of a signature previously made by way of proposal, the document having been altered in the meantime and the party having assented to the alterations, is equivalent to an actual signature of the document as finally settled and as the record of the concluded contract. The signature contemplated by the statute is not the mere act of writing, but the writing coupled with the party's assent to it as a signature to the contract: and the effect of the parol evidence in such a case is not to alter an agreement made between the parties but to show what the condition of the document was when it became an agreement between them (b). Moreover it matters not for what purpose the signature is added, since it is required only as evidence, not as belonging to the substance of the contract. It is enough that the signature attests the document as that which contains the terms of the contract (c). Nor need the particulars required to make a complete memorandum be all contained in one document: the signed document may incorporate others by reference, but the reference must appear from the writing itself and not have to be made out by oral evidence: for in that case there would be no record of a contract in writing, but only disjointed parts of a record pieced out with unwritten evidence (d). One who is the agent of one party only in the transaction may be also the agent of the other party for the purpose of signature (e). There is considerable authority (though short (a) Smith v. Neale, 2 C. B. N. S. 67, 26 L. J. C. P. 143, Reuss v. Picksley, in Ex. Ch. L. R. 1 Ex. 342. (b) Stewart v. Eddowes, L. R. 9 C. P. 311. (c) Jones v. Victoria Graving Dock Co. 2 Q. B. D. 314, 323. It may be doubted whether this view of the statute does not tend to thrust con tracts upon parties by surprise and contrary to their real intention. (d) The last cases on this subject are Peirce v. Corf, L. R. 9 Q. B. 210, Kronhein v. Johnson, 7 Ch. D. 60. Cp. Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140. (e) As to this, Murphy v. Boese, L. R. 10 Ex. 126. Semble, within the Statute. of an actual decision) for holding that the Statute of deeds not Frauds does not apply to deeds. Signature is unnecessary for the validity of a deed at common law, and it is not likely that the legislature meant to require signature where the higher and more formal solemnity of sealing (as it is in a legal point of view) is already present (a). But as in practice deeds are always signed as well as sealed,` and distinctive seals are hardly ever used except by corporations, the absence of a signature would nowadays add considerably to the difficulty of supporting a deed impeached on any other ground. Bills of The law as to the sale and disposition of personal chattels Sale Act. is affected, in addition to the Statute of Frauds, by the Bills of Sale Act 1878, 41 & 42 Vict. c. 31: but the subject is too special to be entered on here. Transfers of ships and copy Transfers of British ships are required by the Merchant Shipping Act 1854 (s. 55 sqq.) to be in the form thereby right. prescribed. Assignments of copyright are directly or indirectly required by the various statutes on that subject to be in writing (b), and in the case of sculpture by deed attested by two witnesses (54 Geo. 3, c. 56, s. 4). But an executory agreement for an assignment of copyright apparently need not be in writing. And informal executory agreements for the sale or mortgage of ships seem now to be valid as between the parties, though under earlier Acts it was otherwise (c). Sale of horses in market overt. There is "An Act to avoid Horse-stealing" of 31 Eliz. c. 12, which prescribes sundry forms and conditions to bę observed on sales of horses at fairs and markets: and every sale gift exchange or other putting away of any (a) Cherry v. Heming, 4 Ex. 631, 19L. J. Ex. 631. Blackstone (2. 306, and see note in Stephen's Comm., 1. 510, 6th ed.) assumed signature to be necessary. (b) Leyland v. Stewart, 4 Ch. D. 419, and as to designs Jewitt v. Eckhardt, 8 Ch. D. 404. (c) Maude and Pollock on Merchant Shipping, 3rd ed., pp. 23, note, 33-35. And see the Amendment Act of 1862, 25 and 26 Vict. c. 63, 8. 3. horse mare gelding colt or filly, in fair or market not used in all points according to the true meaning aforesaid shall be void." The earlier Act on the same subject, 2 & 3 Phil. & Mary, c. 7, only deprives the buyer of the benefit of the peculiar rule of the common law touching sales in market overt. These statutes are believed to be in practice inoperative. B. Marine Insurances. By 30 Vict. c. 23, s. 7, marine insurances must (with the exception of insurances against owner's liability for certain accidents) be expressed in a policy. But the words are not so strict as those of the repealed statutes on the same subject, and the preliminary "slip," which in practice though not in law is treated as the real contract, has for many purposes been recognized by recent decisions. These will be spoken of in another place under the head of Agreements of Imperfect Obligation (Chap. XII). C. Transfer of Shares. There is no general principle or provision applicable to the transfer of shares in all companies. But the general or special Acts of Parliament governing classes of companies or particular companies always or almost always prescribe forms of transfer. In cost-book mining companies it seems that no particular form is needed, and an executory contract for the sale of shares need not as a rule be in writing. It would be useless to enter here into details: the reader will find full information in Mr. Justice Lindley's treatise, 1. 703 sqq. Assuming joint stock partnerships with transferable shares to be lawful at common law (which is the better opinion) their shares should be transferable without writing in the absence of agreement to the contrary. But for reasons elsewhere given this is now of no practical importance. N Marine Insurance. Transfer of Shares. Promise to pay debt barred by mitation. D. Acknowledgment of barred debts. The operation of the Statute of Limitation, 21 Jac. 1, c. Stat. of Li- 16 in taking away the remedy for a debt may be excluded by a subsequent promise to pay it, or an acknowledgment from which such promise can be implied. The promise or acknowledgment if express must be in writing and signed by the debtor (9 Geo. 4. c. 14, s. 1) or his agent duly authorized (19 & 20 Vict. c. 97, s. 13). The subject calls for mention here, especially as the promise or acknowledgment is for some purposes a new contract. But we say more of it under the head of Agreements of Imperfect Obligation, Ch. XII. below. Foreign laws ana logous to Stat. of A short account of some of the foreign laws which correspond more or less closely to our Statute of Frauds is given in the Appendix (Note D.). CHAPTER IV. CONSIDERATION. THE following description of Consideration was given by Considerathe Exchequer Chamber in 1875: "A valuable considera- tion, what. tion, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other" (a). An act or forbearance of the one party, present or promised, in the price for which the promise of the other is bought, and the promise thus given for value is enforceable. An informal and gratuitous promise, however strong may be the motives or even the moral duty on which it is founded, is not enforced by English courts of justice. modern The idea of Consideration in this generality is peculiar to Cause in England: and the difference between it and its nearest Con- French tinental analogies is instructive enough to be worth dwelling law. upon a little. We read in the French Code Civil, following Pothier: "L'obligation sans cause, ou sur une fausse cause, ou sur une cause illicite, ne peut avoir aucun effet" (b). Looking at this text alone, nothing would at first sight seem more natural to an English lawyer than simply to translate cause by consideration. But let him turn to a French commentary on the Code, and he finds no distinct and comprehensive definition of cause as a legal term of art, at (a) Currie v. Misa, L. R. 10 Ex. p. 162, per Cur. referring to Com. Dig. Action on the Case, Assumpsit B. 1-15. Cp. Evans, Appendix to Pothier on Obligations, No. 2, and Edgware Highway Board v. Harrow Gas Co. L. R. 10 Q. B. 92, 95; and (b) Code Civ. 1131, Pothier Obl. § 42. |